By Sri. MOHANDASAN.K, PRESIDENT
The case of the complainant is as follows: -
1. The complainant booked a brand-new Hyundai i20 Magna Executive VTVT 1.2 polar white car before first opposite party on 13/09/2018. There was an exchange offer of bonus Rs.30,000/- to his old alto 800 car of 2014 model. The complainant handed over his old car bearing No. KL 55 Q 3063 Alto 800, 2014 model for which it was valued as Rs.2,40,000/-. For the balance invoice amount the opposite party offered finance and which was arranged by the first opposite party. The first opposite party promised to deliver the new car within two days but were extended later for one or other reasons upto 20/09/2018.
2. The complainant and family reached at the first opposite party by the morning hours on 20/09/2018 but realized that the delivery will be affected by evening only. Later by evening the family members including aged parents were brought again to the first opposite party by 4pm but the delivery of the vehicle was done at 6.30pm. The complainant with all family members filled full tank petrol in the vehicle for Rs.,2200/- and went for a ride around 30 kilometers and reached back home at night. When the bonnet of the vehicle was opened in the next morning, lot of rusted parts have seen and on closer look, it was identified that the vehicle was rusted totally on engine area, under body, under the mat and on the body area of the said car. Hence complainant called for a mechanic known to him and he identified clearly that the vehicle was sunk in the flood and the same was refurbished and delivered to the complainant as brand-new vehicle and opposite parties adopted noxious unfair trade practice by delivering such vehicle. The same was confirmed by other mechanical engineers known to the complainant. Therefor the vehicle was taken back to first opposite party by then itself i.e on 21/09/2018. While the complainant taken back the vehicle to first opposite party, they at first instance denied the same but the experts accompanied complainant categorically shown each and every part and also started to call media. While the first opposite party indentified that the complainant is calling of media, they confessed that it was a mistake and offered to return an amount of Rs.2,00,000/- but the complainant did not adhere to the same, but wanted to the vehicle to be taken back and they admitted the same and given acknowledgment letter that first opposite party received the car on 21st day of September 2018 at 3.30 pm by the then available head of the institution i.e assistant manager, sales of first opposite party and also taken entire responsibility and promised to refund of the amount i.e. 2.7 lakh (Value + exchange bonus ) within two days. The complainant returned the vehicles documents to the first opposite party then and there itself. They also took responsibility of closing of finance made by them.
3. The letter was given by the first opposite party after and due consultation with officers of second opposite party at Chennai and the complainant and others clearly heard discussion in Tamil and English with second opposite party men and told that they are discussing the matter with second opposite party. However, the first opposite party did not refund the amount of 2.7 lakh for many days and the complainant went to opposite party on all days but they were postponing the payment for one or other reasons. On 05/10/2019 an officer of HDFC came to complainant and asked to pay Rs.6,028/- for closing of the finance amount but complainant sought to collect from the opposite party and called up to them. The first opposite party told complainant to pay it for immediate closure of finance amount and they promised to refund the same at the earliest.
4. The opposite party failed to pay the amount. As per the discussion between the first opposite party and complainant the opposite party given letter to complainant dated 13/10/2018 which admits that the opposite party will pay Rs.2,40,000/- on or before 01/11/2018 and orally admitted to pay Rs.2.7 lakhs + Rs.6,028/-. Subsequently, after repeated requests the opposite party paid Rs.1,60,478/- to complainant through NEFT but the balance amount is not so far return. The opposite party acted negligently and non-refund of the promised amount of Rs.2.7 + 6,028 are deficient and imperfect and now there is no body responding to pay but shifting burden to one or other without payment.
5. The complainant alleges deficiency in service and unfair trade practice against the opposite party. It is alleged the opposite party delivered defective car to the complainant by making the complainant to believe that the car was new branded one. Due to the act of the opposite party the complainant is suffering mental agony, hardship, and inconvenience. Hence, the prayer of the complainant is to pay an amount of Rs. 1,09,522/- towards the balance amount of Rs.2.7 lakh after deducting Rs.1,60,478/- which is already paid to the complainant. The complainant also prays 5 lakh rupees for mental agony, stress and loss suffered by the complainant and Rs.5 lakh for the deficiency in service coupled with unfair trade practice and cost of the proceedings.
6. On admission of the complaint notice was issued to the opposite parties and the opposite parties entered appearance and filed detailed version.
7. The first opposite party denied the allegations in the complaint and submitted that the complaint is filed without any bonafides.
8. The first opposite party submitted that they have got dealership of the Hyundai Company and they are the due center of the Hyundai company. The first opposite party further admitted that the complainant purchased i20 magna executive VTVT 1.2 polar white car from the opposite party on 20/09/2018. The opposite party submitted that the complainant delivered his old Alto 800 car for Rs.2,10,000/- along with exchange offer of Rs.30,000/-. The vehicle was delivered considering the value of the vehicle including bonus value of Rs.30,000/- as Rs.2,40,000/-. The first opposite party delivered the new vehicle after water cleaning to the complainant.
9. The first opposite party submitted that they already sold more than 1000 i 20 cars but nobody raised any complaint against the opposite party.
10. The opposite party submitted that on the next day of delivery of the vehicle the complainant called the opposite party and brought the vehicle to the showroom of the opposite party alleging that the vehicle had sunk in flood. But really the vehicle was never involved in the flood and it was brought and delivered from the showroom at Tirurkkkad. Almost all the vehicles are supplying from the showroom of the Perinthalmanna of the opposite party. The vehicles to the show room are brought from Hyundai Company directly. There is no occasion to stop the vehicle yet another place or there is no chance to keep the vehicle any other place. The Tirurkkad showroom never met with flood incident or any sort of natural calamity. So there is no basis for the allegations of the complainant. The opposite party had informed all the facts to the complainant while he brought back the vehicle to the opposite party. But due to the pressure of some external forces the complainant insisting the refund of the cost of vehicle. Only due to the pressure and threat from the side of complainant, the opposite party refunded the value of the vehicle. The complainant is not entitled for the amount as claimed in the complaint. The claim of the complainant that he is entitled for Rs.2. 70,000/- is baseless. The opposite party assessed the value of the old car of complainant as Rs.2,10,000/-. The relevant papers also were given to the complainant. Rs.30,000/- was assessed bonus value of the vehicle. So, there is no justification for the claim amount of complainant. The complainant is not entitled for the refund of bonus value Rs.30,000/-. The opposite party submitted that the complainant availed a loan of Rs.4,39,587/- from the HDFC bank and the value of the old vehicle fixed as 2,10,000/- in addition that 500 rupees was paid to the opposite party by cash and thus the opposite party received altogether 6,50,087/- from the complainant towards the value of the vehicle. The said amount of Rs.4,39587/- was credited to the account of the opposite party and it was paid towards the value of the vehicle. The opposite party refunded an amount of Rs.1,60,478/- to the complainant. The balance amount of Rs.50,022/- was remitted before the RTO office on account of Road tax. Thereafter the complainant and opposite party approached the RTO office and realized that the amount will not be refunded from RTO office, which is convinced by the complainant. So, it is not possible to pay the said amount to the complainant. Hence the opposite party submit that the claim of Rs.1,09,522/- from the opposite party is bales and against truth and fact.
11. The opposite party further submitted that there is no step was taken by the complainant to prove that the vehicle had sunk in the flood. The vehicle still lay idle in the showroom of the opposite party and the vehicle can be examined by any expert at any time. The complainant approached this Commission manipulating the fact and thereby trying to extract money from the opposite party which cannot be allowed. Hence the prayer is to dismiss this complaint with the cost of the opposite party.
12. The second opposite party filed version contenting that the complaint is not maintainable and deserves to be dismissed in limine. It is submitted that the complaint is generic without any specific allegation against the second opposite party and devoid of documentary evidences.
13. The second opposite party submitted that they deal with all its dealers on principal-to-principal basis. For any act of Commission, conduct, representation etc. of dealer cannot be mad liable. Any error / omission / misrepresentation, if any at the time of retail sales or services of the car on part of the dealer cannot be fastened upon the answering opposite party. It is pertinent to mention that the “title of the Hyundai vehicle” passes on to the concerned dealer, the moment it is put on a common carrier and thereafter the concerned dealer becomes the owner of the car. The concerned dealer then sells the car with his own profit margin to the customers. The opposite party cited decisions dealing with principal and dealer issue. It is submitted that the relationship with the second and first opposite party is one of the principals – to – principal basis and not as principal- to – agent. Hence the oppose party could not be held liable for acts, omission of dealer during retailing of the vehicle as held by the National Commission in Maruthi Udyog Limited Vs Nagender Prasad Sinha & Another and also rendered by Hon’ble supreme Court of India in Indian oil corporation Vs Consumer protection council , Kerala and another, which is decided on 07/12/1993. It is specifically submitted that the averment in the complaint establishes that the entire issues and cause of action is inter se the complainant and first opposite party. The second opposite party have no privity to any contract or communication inter se the complainant and first opposite party. It is further submitted that the allegations in respect of checking the car with experts it is rest with complainant, hence the complaint to be dismissed with exemplary cost.
14. The complainant and opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A8. Ext A1 is copy of delivery of note of Alto 800 dated 13/09/2018. Ext. A2 is invoice dated 19/09/2018. Ext. A3 is photographs of rust in the car and also photo of delivery of the vehicle. Ext. A4 is copy of original letter in hand written on 29/01/2018.issued on behalf of the first opposite party. Ext. 5 is copy of complaint given to the first opposite party dated 25/09/2018. Ex.t A6 is copy of letter dated 13/10/2018. Ext. A7 is copy of account statement of complainant maintained in the Canara bank. Ext. A8 is power of attorney dated 07/01/2021 executed by the complainant in favor of Mr. Shamsudheen S/o Aboobacker, puthuveetitl. The first opposite party documents marked as Exits B1 to B5. Exit B1 is journal voucher dated 19/09/2018 for Rs.2,10,000/-. Ext. B2 is journal voucher for Rs.4,39,587/-. Ext. B3 is journal voucher dated 05/10/2018 for Rs.4,39,587/-. Ext. B4 is journal voucher dated 01/11/2018 for Rs.1,60,478/-. Ext. B5 is copy of form TR5 (c) (See rule 90(a) of KTC) obtained from motor vehicles department. The opposite parties filed argument note also
15. Heard complainant and opposite parties, perused affidavit, and documents and the argument note of the first opposite party.
The following points arise for consideration: -
- Whether there is deficiency in service and unfair trade practice on the part of the opposite parties?
- Relief and cost?
16. Point No.1 & 2
The first opposite party admitted the purchase of i20 Magna EXECTUIVE VTVT 1.2 polar white car from the opposite party on 20/09/2018. The opposite party also admitted the complainant exchanged his old Alto 800 car to the opposite party at the time of purchase of new vehicle. The submission of the first opposite party is that the value of the old vehicle fixed as 2,10,000/- and 30,000/- was offered as bonus as part of transaction. Hence the said amount of Rs.30,000/- is not the value of the vehicle and which the complainant is not legally entitled.
17. The first opposite party submitted that the complainant brought back the vehicle after one day of use alleging the vehicle had sunk in flood. But the complainant could not produce any sort of document to establish the allegation. Further submitted that the vehicle was delivered to the complainant after producing the same from the showroom of the opposite party situated at Tirurkkad near Pertinthalmanna. It is also submitted that all the vehicles belong to the Hyundai company is delivering from the showroom of Perinthalmanna all over the showrooms in the district of Malappuram. No occasion to meet the vehicle with flood in the showroom at Tirurkkad . The said fact was brought to the notice of the complainant immediately on production of the vehicle to the showroom of the opposite party. But due to the pressure from some other sources the complainant insisted for the refund of the value of vehicle and the opposite party refunded the amount to the complainant. The specific contention of the opposite party is that the complainant is not entitled to receive Rs. 2,70,000/- as contended in the complaint and the price fixed for his old car was only Rs.2,10,000/-. The 30,000/- rupees is only bonus value offered by the opposite party which the complainant is not at all entitled to get back. Further it is submitted that the opposite party received 4,39,587/- rupees through the HDFC bank and Rs.2,10,000/- as price of the old car along with Rs.500/- in cash altogether Rs.6,50,087/-. The amount of Rs.4,39,587/- was transferred to the account of the complainant itself and Rs.1,60,478/- was paid to the complainant directly. The balance amount of Rs. 50,022/- was remitted before RTO office which is not refundable from the RTO office, which the complainant is very aware. So, the claim of the complainant for Rs.1,09,522/- is baseless.
18. The complainant exchanged his old car Maruthi Alto 800 to the opposite party for Rs.2,40,000/- including 30,000/- as bonus amount. The opposite party admitted the price of the new vehicle was considered including the exchange value of old vehicle as Rs.2,40,000/-. The complainant exchanged the old vehicle impressing by the bonus offer of 30,000/- to his old vehicle. Hence the contention of the opposite party that the complainant is not entitled for the bonus amount is baseless. The opposite party further contended that they incurred an amount of Rs.50,522/- before the RTO office on account of road tax of the vehicle. The contention of the opposite party is that since the amount remitted before RTO office is not refundable one and so the opposite party is not liable to pay the amounts to the complainant.
19. In this complaint the complainant purchased vehicle from the first opposite party and on the next day itself he returned vehicle to the opposite party alleging that the vehicle had sunk in flood and so the vehicle was not at all a fresh one. The complainant produced Exhibits to show the interiors of the new vehicle to establish his allegations against the vehicle. The complainant also produced a photograph revealing the handing over of key of the vehicle to the complainant and his family members as contended in the complaint. The complainant contended that the vehicle was examined by experts who are his close friends and found the condition of the vehicle. The complainant being dissatisfied with the condition of the vehicle immediately retuned the same to the first opposite party. The vehicle stands with the opposite party on the next day of the delivery of the vehicle itself. The opposite party contended that the complainant has not taken steps to prove the allegations in the complaint. The alleged defective vehicle stands with the opposite party since immediately the next day of the delivery of the vehicle. The opposite party has not taken steps to disprove the allegations against the vehicle. But the photographs marked as Ext. A3 series establish the allegation of the complainant against defective vehicle. Now it is revealed the fact the complainant and family received the new vehicle from the first opposite party which was not a fresh one and up to the expectations of the complainant and so he returned the vehicle to the opposite party. The complainant is not at all responsible for the registration of the vehicle which was defective one as per the documents and averments in the affidavit of the complainant. The opposite parties liable to incur the expenses for the registration of the vehicle and that being the condition the first opposite party is liable to refund the same amount to the complainant. Moreover, the complainant was owner of a maruthi Alto 800 vehicle and he exchanged the vehicle to purchase a new vehicle. Now the complainant is without his old vehicle and also not with the new vehicle So there is reason to upheld the averment of the complainant that there is deficiency in service and unethical trade practice on the part of the opposite parties. The complainant submitted that due to the act of the opposite parties he sustained mental agony, hardship, inconvenience, and financial loss. But the complainant claimed huge amount on account of defective service and unethical trade practice from the side of opposite parties. We find Rs.1,00,000/- will be reasonable amount as compensation on account of deficiency in service and unethical trade practice which resulted inconvenience, hardship, mental agony and financial loss to the complainant. The complainant also prayed for the refund of Rs.6,028/- which is paid by complainant to close the finance of HDFC bank.
20. The second oppose party has got a case that there is no privity of contract between the complainant and the second opposite party. The relation between the second opposite party and first opposite party is on principal-to-principal basis. The submission of the second opposite party is that any error / omission / misrepresentation if any at the time of retail sales or services of the vehicle on the part of the dealer cannot be fastened upon the second opposite party. The perusal of the complainant and affidavit of the complainant there is no specific allegation against the second opposite party. Hence, we find the first opposite party alone is liable to compensate the complainant.
21. Considering the entire facts and evidence of the parties we find that the complainant is entitled an amount of Rs.80,022/- on account of the amount received from the complainant towards the purchase value and registration expenses of the vehicle i.e 30,000/-as the bonus amount of the old vehicle and Rs.50,022/- as the registration expenses of the vehicle. The complainant is also entitled an amount of Rs.6,028/- towards the amount paid by the complainant to close the loan amount. The complainant is entitled for compensation of Rs.1,00,000/- on account of deficiency in service and unethical trade practice and thereby caused inconvenience, hardship, mental agony and financial loss sustained by the complainant. The opposite party is liable to pay Rs.10,000/- as cost of the proceedings.
22. Hence we allow this complaint as follows: -
- The first opposite party is directed to pay Rs.80,022/- (Rupees eighty thousand twenty-two only) towards the cost of the vehicle collected by the opposite party from the complainant.
- The first opposite party is directed to pay Rs.6,028/- (Rupees six thousand twenty-eight only) to the complainant on account of payment made by the complainant to close the finance of HDFC bank.
- The first opposite party is directed to pay Rs.1,00,000/- (Rupees one lakh only )as compensation on account of deficiency in service , unethical trade practice and there by caused inconvenience , hardship, mental agony and financial loss sustained by the complainant .
- The first opposite party is directed to pay Rs.10,000/- (Rupees ten thousand only) as cost of the proceedings.
The first opposite party shall comply this order within one month form the date of receipt of copy of this order, failing which the complainant is entitled interest at the rate of 9% per annum on the above entire amount from the date of order till date of payment .
Dated this 9th day of June , 2023.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A8
Ext.A1: Copy of delivery of note of Alto 800 dated 13/09/2018
Ext.A2: Invoice dated 19/09/2018.
Ext A3: Photographs of rust in the car and also photo of delivery of the vehicle.
Ext A4: Copy of original letter in hand written on 29/01/2018.issued on behalf of the
first opposite party.
Ext A5: Copy of complaint given to the first opposite party dated 25/09/2018.
Ext.A6: Copy of letter dated 13/10/2018.
Ext.A7: Copy of account statement of complainant maintained in the Canara bank.
Ext.A8: Power of attorney dated 07/01/2021 executed by the complainant in favour of Mr. Samshudheen s/o Aboobacker puthuveetitl .
Witness examined on the side of the opposite party: DW1 and DW2
Documents marked on the side of the opposite party: Ext. B1 to B
Ext.B1: Journal voucher dated 19/09/2018 for Rs.2,10,000/-.
Ext.B2: Journal voucher for Rs.4,39,587/-.
Ext.B3: Journal voucher dated 05/10/2018 for Rs.4,39,587/-.
Ext.B4: Journal voucher dated 01/11/2018 for Rs.1,60,478/-.
Ext.B5: Copy of form TR5 ( c) (See rule 90(a) of KTC ) obtained from motor vehicles
department.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
